The role and legality of mandatory minimum sentences with particular reference to section 14(1) (a), (b) and section 14(2) of the stock theft amendment act of, 2004 (act 19 of 2004)

Abstract

Abstract provided by author

The primary aim of this research was to investigate the constitutionality of mandatory minimum sentences in view of the Stock Theft Amendment Act, 2004. After having dealt with a number of Namibian and South African Jurisprudence, the overbearing conclusion is that the provision of mandatory minimum sentences is not a judicial function, but rather in the domain of the Legislature, There is therefore no interference with the judiciary, whose function it is to find facts and apply rules to it. The duty to Legislate lies with the Parliament, because Parliamentarians, as the representatives of the masses, do have a legitimate concern in the prevention and punishment of crime

Prescribed minimum sentences are not unconstitutional per se. The question whether or not prescribed minimum sentences is unconstitutional involves a value judgment, which must be judicially arrived at with due regard to the contemporary norms, aspirations and believes of the Namibian people. This question should thus be decided in view of the particular case before Court. Another fundamental conclusion is that the constitutionality of mandatory minimum sentences must be considered with due regard to the notion of "substantial and compelling circumstances" which would permit the imposition of a lesser sentence than the prescribed minimum sentence, if circumstances so require

"Substantial and compelling circumstances", which goes to the heart of what is termed the proportionality test, i.e. a magistrate or judge must impose at least the minimum sentence, unless he is compelled by the particular circumstances of the case before him to impose lesser one. The only duty placed on such judicial officer, if substantial and compelling circumstances are found to be present, is to place it on the record. An important conclusion is that ordinary mitigating factors do not qualify in itself as"substantial and compelling", but may amount to substantial and compelling because of its cumulative effect

If the Nghitukwa judgment and indeed the Katjirora case could be used as a limited gauge to measure future trends, one can conclude that the Act would be curtailed by some interpretative issues surrounding section 14(1) (a), and section 14(1) (b) read with section 14(2).